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People v. Wojcik5/28/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
I. Introduction
A jury convicted appellant Justin Michael Wojcik of possession of marijuana for sale (Health & Saf. Code, § 11359); transportation of marijuana (§ 11360, subd. (a)); cultivation of marijuana (§ 11358); misdemeanor driving under the influence of drugs (Veh. Code, § 23152, subd. (a)); and misdemeanor battery (Pen. Code, § 243, subd. (e)(1)). The jury rejected appellant's claim that he possessed the marijuana for medical purposes under section 11362.5.
In light of the California Supreme Court's recent decision in People v. Mower (2002) 28 Cal.4th 457, 464 (Mower), we agree with appellant that the trial court erred in instructing the jury that appellant had the burden of proving by a preponderance of the evidence all of the facts necessary to establish his defense. In accordance with Mower, appellant's burden was merely to raise a reasonable doubt as to his guilt based on his defense. We conclude that Mower compels reversal of appellant's conviction for possession of marijuana for sale (§ 11359) and cultivation of marijuana (§ 11358). In all other respects, the judgment is affirmed.
II. Facts and Procedural History
A. Case No. CR014811
On March 13, 2001, two California Highway Patrol officers were driving their patrol vehicles southbound on Highway 101 at about 12:30 a.m. when they witnessed appellant driving a 1988 Ford Ranger in the opposite direction at approximately 82 miles per hour. The officers turned around and caught up with appellant, who had increased his speed to 86 miles per hour. Appellant exited the highway and came to a stop.
When one of the officers approached appellant's vehicle and started speaking to him through the open driver's window, the officer noticed the smell of stale alcohol. Appellant appeared nervous. He was directed to exit the vehicle. The officer noticed that appellant's eyes were red and watery and his behavior was "kind of erratic." He seemed to slur his words. The officer detected the odor of marijuana. Appellant admitted smoking marijuana earlier in the evening. Appellant submitted to a series of field sobriety tests that indicated he was under the influence of alcohol and/or drugs.
Appellant admitted he had a daypack containing marijuana in his vehicle. The daypack was searched and the following items were found: a plastic Ziploc bag containing 232 grams of bud marijuana, another Ziploc bag containing 13.7 grams of bud marijuana, a third plastic bag containing approximately 402 grams of marijuana leaves. The daypack also contained a digital scale, scissors, rolling papers and an empty Ziploc bag. The officer also found over $900 in cash in appellant's possession.
Appellant was placed under arrest and transported to the Eureka Police Department, where an officer conducted a drug evaluation and confirmed that appellant was under the influence of marijuana. Appellant also submitted to a urinalysis that tested positive for methamphetamine and marijuana.
B. Case No. CR0114665
On June 10, 2001, while out on bail and awaiting trial on the above-described incident, the Humboldt County Sheriff's Department was called to a domestic dispute at appellant's residence. The officer responded to appellant's residence and spoke with his long-time, live-in girlfriend, Rose Silver, and a
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